Cohoon v. Swain
| Decision Date | 18 October 1939 |
| Docket Number | 40. |
| Citation | 5 S.E.2d 1,216 N.C. 317 |
| Parties | COHOON v. SWAIN. |
| Court | North Carolina Supreme Court |
Civil action instituted by plaintiff, elected sheriff for the term beginning the first Monday in December, 1938, to recover the physical possession of the office, books, etc., from the defendant, the sheriff for the preceding term who is holding over.
The defendant was appointed in 1937 to fill the unexpired term of the sheriff who died. Said term expired on the first Monday in December, 1938. He and the relator were rival candidates for said office in the general election of 1938. The several registrars and judges of election in the various polling precincts in said county counted and canvassed the vote and duly made returns thereof to the County Board of Elections of Tyrrell County. When the County Board of Elections met to canvass the vote the defendant challenged the returns of the precinct election officials and demanded an investigation. Pursuant thereto the County Board of Elections set a date for and held a hearing. As a result thereof the said board determined and declared that the relator had received the highest number of legal votes cast in said election for said office and had been elected to same and so certified, as required by law. Thereupon, the defendant appealed to the State Board of Elections. The State Board of Elections set a date for and held a hearing in which the parties and counsel appeared. Upon said hearing the said board dismissed the appeal of the defendant and affirmed the finding of the County Board of Elections, and so certified to said county board, and the county board issued and delivered to the relator a certificate of election. Thereafter, on the first Monday in December, 1938, the relator presented his certificate of election to the County Board of Commissioners took and subscribed the oath of office before the Clerk of the Superior Court of Tyrrell County, and tendered to the Board of Commissioners the statutory bonds with good and sufficient sureties, which were received, approved and accepted by the Board of Commissioners of Tyrrell County. Having thus duly qualified for the office of sheriff, as required by statute, the relator made demand upon the defendant to turn over to him said office, together with the property and effects of the same, which the defendant refused to do. Thereupon, the relator, with leave of the Attorney General of the State of North Carolina, instituted this action to compel the defendant to forthwith surrender to him the said office, together with the books, property and effects of the same.
The defendant, in his answer, entered a general denial of the several allegations contained in the complaint. He did not allege any fraud or irregularity in the conduct of the election or in the counting of the ballots. He denied the issuance to the relator of a certificate of election but made no affirmative attack thereon.
When the case came on for trial, after the plaintiff had offered evidence tending to support the allegations of his complaint the defendant tendered evidence for the purpose of showing that certain absentee ballots were illegally cast and counted, sufficient in number, as he contends, to change the result of the election. He likewise offered evidence which he contends, will tend to show the illegality of such ballots. On objection, this evidence was excluded and the defendant excepted. Issues were submitted to the jury as follows:
The Court in its charge instructed the jury that if it believed the evidence, found the facts to be as the testimony tended to show and so found by the great weight of the evidence, it should answer each issue "yes." Upon the verdict of the jury in favor of the relator in accord with the charge the Court entered judgment, to which the defendant excepted and appealed.
M. B. Simpson, of Elizabeth City, Sam S. Woodley, of Columbus, and John H. Hall, of Elizabeth City, for appellant.
McMullan & McMullan, of Elizabeth City, and W. L. Whitley, of Plymouth, for appellee.
The defendant interposed a demurrer ore tenus to the complaint. Exception to the judgment of the court overruling the demurrer cannot be sustained. The complaint alleges the election of the relator, the issuance of a certificate of election, his qualification as provided by statute and the refusal of the defendant to surrender the office. These averments are the essentials of his cause of action.
Nor can the exception to the refusal of the Court to enter judgment of nonsuit be sustained. The certificate of election issued to the successful candidate is an official document having legal import and effect. It is authorized and required by statute and it proves prima facie the pertinent facts stated therein. Roberts v. Calvert, 98 N.C. 580, 4 S.E. 127, 130. The declaration of election as contained in the certificate conclusively settles prima facie the right of the person so ascertained and declared to be elected to be inducted into, and exercise the duties of the office. Gatling v. Boone, 98 N.C. 573, 3 S.E. 392; Cozart v. Fleming, 123 N.C. 547, 31 S.E. 822; Harkrader v. Lawrence, 190 N.C. 441, 130 S.E. 35; Lyon v. Board of Commissioners, 120 N.C. 237, 26 S.E. 929; Rhodes v. Love, 153 N.C. 468, 69 S.E. 436. "The law contemplates and intends, generally, that the result of an election, as determined by the proper election officials shall stand and be effective until it shall be regularly contested and reversed or adjudged to be void by a tribunal having jurisdiction for that purpose." State v. Cooper, 101 N.C. 684, 8 S.E. 134, 135; Bynum v. Burke County Commissioners, 101 N.C. 412 414, 8 S.E. 136; State v. Jackson, 183 N.C. 695, 110 S.E. 593; Jones v. Flynt, 159 N.C. 87, 74 S.E. 817. The certificate of election is not subject to attack except in a civil action in the nature of a quo warranto...
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